US House and Senate Democrats in July introduced the most expansive LGBTQ civil rights bill ever. And on Tuesday, President Barack Obama announced he supported it.
The Equality Act would effectively expand the Civil Rights Act, originally passed in 1964, to protect people from discrimination based on sexual orientation and gender identity in the workplace, housing, public accommodations (hotels, stores, and similar public places), education, and various other settings. It also expands public accommodations protections to prohibit sex discrimination, and strengthens other, existing protections in public accommodations.
But the proposal faces tough odds in a Republican-dominated Congress, which has shown no interest in bills that would protect LGBTQ people from discrimination in the workplace and education — much less a more comprehensive bill that includes LGBTQ protections in practically all settings covered by federal law.
Federal and most state laws don't explicitly protect LGBTQ people from discrimination. According to the Human Rights Campaign, most states don't include sexual orientation and gender identity in existing civil rights statutes that generally ban discrimination in the workplace, housing, and public accommodations, and 37 states don't include both in laws that ban discrimination in education.
31 states don't ban discrimination against sexual orientation and gender identity in the workplace
Most states don't ban discrimination based on sexual orientation and gender identity in the workplace, housing, or public accommodations.
As a result, more than half of LGBTQ Americans, according to the LGBTQ advocacy group Movement Advancement Project, live in a state where, under state law, an employer can legally fire someone because he's gay, a landlord can legally evict someone because she's lesbian, and a hotel manager can legally deny service to someone who's transgender — for no reason other than the person's sexual orientation or gender identity.
Currently, 19 states ban discrimination based on sexual orientation and gender identity, while three additional states ban discrimination based on sexual orientation. Some other states protect public but not private employees from discrimination. Many municipalities have nondiscrimination laws that only apply within their local borders, even in states that don't have such laws. And some companies prohibit discrimination in their own policies.
The protections can further vary from state to state. Massachusetts's protections for gender identity and Utah's protections for sexual orientation and gender identity don't apply to public accommodations. Some states also include exemptions for discrimination based on religious grounds. Enforcement varies, as well: Depending on the state, private lawsuits, fines, and jail time are all possible forms of punishment for discrimination.
37 states don't ban discrimination against all LGBTQ people in education
Other civil right laws also protect students from harassment and discrimination in K-12 public schools — but these are typically separate from measures that ban discrimination in the workplace, housing, and public accommodations. Thirteen states have education laws that ban discrimination based on their sexual orientation and gender identity, while Wisconsin protects students from discrimination based on sexual orientation but not gender identity. So in a majority of states, LGBTQ students have no explicit legal protections in schools.
Protections for LGBTQ people build on landmark civil rights laws
Nondiscrimination protections for LGBTQ people build on existing federal and state laws — most notably the Civil Rights Act of 1964 and the Fair Housing Act, which protect people from discrimination based on their race, color, national origin, religion, and sex.
"The whole point was to say that black people ought to be able to drive to Mississippi from New York and have a place to stay, or get a meal at a restaurant," Robin Wilson of the University of Illinois said of the landmark federal laws. "Over time, we added protected classes to that — people with disabilities in some states, for example."
Some LGBTQ advocates argue that legal prohibitions against sex discrimination already protect LGBTQ people. But that interpretation hasn't been affirmed by higher courts, casting uncertainty over whether it would hold up in a legal dispute.
The uncertainty is why advocates want explicit legal protections for LGBTQ people: New state or federal laws that add sexual orientation and gender identity to nondiscrimination protections would remove any doubt about the reach of laws like the Civil Rights Act, Fair Housing Act, Title IX, and state statutes that prohibit sex discrimination in their public accommodations protections. (Federal public accommodations laws don't currently shield against sex discrimination — only discrimination based on race, color, national origin, and religion.)
"There's no substitute for being explicitly listed in the law," Ian Thompson, LGBTQ legislative director at the American Civil Liberties Union, said. "I also think it's a very powerful statement to see that it is the law of the land that discrimination against individuals because of their sexual orientation or gender identity is wrong and illegal."
Studies show civil rights laws reduce discrimination
The research on nondiscrimination protections is limited, but a 2013 series of studies by Laura Barron of the US Air Force Management Policy Division and Michelle Hebl of Rice University found laws that ban workplace discrimination appear to decrease discrimination based on sexual orientation.
Researchers conducted three studies. The first looked at awareness of civil rights laws. The second looked at discrimination toward gay or lesbian job applicants in neighboring cities with and without nondiscrimination protections. And the third placed people in mock interviews to see whether they were less likely to discriminate against a gay or lesbian applicant if they thought local laws banned it.
Across the board, the studies found nondiscrimination laws reduce signs of prejudice. People in places with existing nondiscrimination laws were more likely to be aware of the protections, and they were less likely to discriminate. Among the 229 participants in the mock interviews, those who believed a local law prohibited discrimination were also less likely to discriminate, based on metrics that gauged negativity toward gay and lesbian people.
The reason civil rights laws are effective, Barron and Hebl suggested, isn't necessarily that people fear the punishment of the law — but rather that civil rights laws authoritatively set the morals of a community. "[T]hese effects occur because anti-discrimination legislation can create social norms that govern what is acceptable and unacceptable behaviors to display toward stigmatized individuals," the researchers wrote.
While Barron and Hebl's studies may be the best research to date, it has some gaps. The researchers only looked at workplace discrimination, not housing or public accommodations, and sexual orientation, not gender identity. The authors also didn't look at the effect of punishments attached to nondiscrimination laws — for example, whether tougher fines or the threat of jail time could further reduce discrimination.
Most Americans think LGBTQ people are already protected under the law
Surveys show that most Americans widely support nondiscrimination protections, but a major hurdle to getting the laws passed may be that Americans already think they're in place.
In a 2014 poll from YouGov and the Huffington Post, 62 percent of respondents said it was already illegal under federal law to fire someone for being gay or lesbian, 14 percent said it was legal, and 25 percent weren't sure. The same poll found most Americans — 76 percent — said it should be illegal to fire someone for being gay or lesbian, while just 12 percent said it should be legal.
The YouGov and Huffington Post poll isn't the first to find strong support for civil rights protections for LGBTQ people. A 2014 survey commissioned by HRC, an LGBTQ advocacy group, found 63 percent of US voters favored a federal law that protects LGBTQ people from employment discrimination, while just 25 percent opposed it.
Another poll from Reuters, conducted in April 2015, found 54 percent of Americans said it's wrong for businesses to refuse service to people based on religious beliefs, while 28 percent said businesses should have that right — suggesting that most Americans would disapprove of businesses discriminating against LGBTQ people on such grounds.
For LGBTQ advocates, the overall results present a tricky situation: Most Americans support nondiscrimination protections for LGBTQ people, but they don't appear to know that these protections aren't currently explicit under the law.
"When people already think these protections are in place," Thompson of the ACLU said, "it can be difficult to work up the motivation that's necessary to push for them."